Fracking ban official in Broomfield, but legal questions loom

Voters have officially banned fracking in Broomfield, but the city still faces legal action and a possible election challenge the wake of the ban's certification.

On Thursday, the Broomfield canvass board certified the recount of Question 300, which bans fracking in Broomfield for five years. The matter, which was subject to an automatic recount because the margin of victory was so slim, passed by just 20 votes after the recount was completed Tuesday.

The canvass board's certification indicates the ban is official, but the future of fracking in Broomfield is still not clear. Broomfield faces a lawsuit from the Balanced Energy Coalition, a pro-fracking group, which alleges the elections division failed to provide legal access for BBEC election watchers throughout the controversial ballot-counting process.

Broomfield also anticipates the possibility that BBEC or another group could legally contest the election. Those who wish to contest the election have 10 days after certification to file that challenge, said Bill Tuthill, Broomfield city and county attorney.

Broomfield also could face legal action from the Colorado Oil and Gas Association, which on Tuesday announced it was suing Fort Collins and Lafayette, two cities that passed anti-fracking measures on Election Day.

It was not clear whether COGA would extend its lawsuit to Broomfield. Calls made to COGA were not immediately returned.

Tuthill said several legal matters are still up in the air, but "as of right now, we have a charter amendment that bans fracking," he said.

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Tuesday night, just before the recount showed the anti-fracking measure passed by 20 votes, the Broomfield Balanced Energy Coalition filed a lawsuit in Broomfield District Court. The lawsuit states BBEC watchers were "systematically denied access ... to witness and verify ballots, envelopes and self-affirmations received before and after the election date," and argues that several meetings regarding election processes took place behind closed doors, instead of being open to the public.

The BBEC is seeking an injunction to stop the ban from taking effect until it can obtain "all information in election documents that is available to election judges," such as vote logs, and access to what election workers talked about during the alleged closed-door sessions.

Tuthill said Broomfield has given election watchers fair access to the election.

Broomfield has 20 days to respond to the lawsuit.

The lawsuit was filed Tuesday as Broomfield was still completing its recount. The measure passed by 17 votes during the original count — which took into account ballots that were not tallied on election night, when the measure was failing by 13 votes.

After the canvass board certified the final results on Thursday, BBEC advisor B.J. Nikkel issued a statement that said the recount certification did not address the group's concerns over the way the vote-counting process was handled.

Though her statement did not specifically indicate BBEC would challenge the election, the statement pointed out that the canvass board's "certification has no bearing on the ability to file a challenge to the election" and that BBEC has 10 days to file a challenge.

"This election is far from finished," Nikkel stated in the release. "The certification is little more than an administrative action and provides no comfort to the people of Broomfield and Colorado seeking election transparency and integrity."

Nikkel also pointed out that Marty Robinson, one of the three canvass board members, chose not sign the vote certification on Thursday afternoon.

Robinson declined to comment on his decision.

The anti-fracking measure is still considered certified, because the other two canvass board members, County Clerk Jim Candelarie and Joan Stern-Murahata, representing the majority of the three-person board, signed off on the recount total.

The recount does not address 17 ballots that have been called into question because of residency eligibility concerns that stemmed from a law change passed in May. Broomfield originally thought the eligibility of 18 ballots could be in question, but one ballot was determined to have been processed correctly, Tuthill said.

The law change allows people who have lived in Colorado for just 22 days to vote in state elections. But Broomfield requires 30-day residency to vote on municipal questions, such as Question 300.

According to the amended abstract of votes cast for the measure, 20,702 votes were counted on the issue. The fracking ban passed with 10,361 votes for and 10,341 against.

Though those 17 votes are not enough to change the outcome of the election, Tuthill said a judge may ask for more information on those ballots when the issue goes to court.